Procedure to investigate suits by or against the government

Section 79 to 82 and Order XXVII of the Civil Procedure Code, 1908 deal with procedure for investigation of suits by or against the government and public officers. However, these provisions only deal with the procedural rights and liabilities that are enforceable against the government and such persons. The substantive rights and liabilities to be followed are those as are provided by the Constitution of India.

Courts in India are governed by procedural laws which govern the trails and the proceedings before them. While there are one sets of rulings which hold that procedure is only a hand-maid of justice and thus should not come into play to preclude a court from ensuring substantive justice, there are equal other sets of rulings which decree that parties not following procedures of the court are not entitled to relief.

It is in the respect of the second line of decisions that we bring to you a recent decision of the Supreme Court which declares that a suit/claim would not be entertained in which Government was required to be made a party to the dispute and not having so done. Holding that it was essential to ensure that Government was made aware of the litigation by making it a party, the Supreme Court declared that procedural law clearly specifies the situation in which Government is required to be made a party and the law to this regard is settled that if the Government is not made a party, the litigation cannot be proceeded.

Article 300 of the Constitution deals with legal proceedings by or against the Union of India or State and provides that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be; in the case of the Central Government, the Union of India and in the case of State Government, the State, which is suing or is being sued.

The relevant Provisions–

The Apex Court in Chief Conservator of Forests, Government of A.P. Vs. Collector, AIR 2003 SC 1805, has observed that the requirement of provision contained in Section 79 CPC as well as Order 27, Rule 1 CPC is not merely a procedural formality, but is essentially a matter of substance and of considerable significance whereby the special provision as to how the Central Government or the State Government may sue or be sued has been indicated. the authority to be named as plaintiff or defendant, as the case may be, shall be-

a) in the case of a suit by or against the Central Government,[the Union

of India], and

b) in the case of a suit by or against a State Government, the State.

It has further been observed that in giving description of a party, the distinction between the mis-description or misnomer of party and mis-joinder and nonjoinder of a party suing or being sued has to be remembered and in case of mis-description of party, the Court at any stage of the suit permit correction the cause title so that the party before the Court is correctly described, and, such mis-description will not be fatal to the maintainability of the proceeding. However, in case of non-joinder of parties, the suit or proceeding will fail.

The Apex Court in Secretary, Ministry of Works & Housing, Government of India and Ors. v. Mohinder Singh Jagdev, has observed that the Union of India can lay the suit and be sued under Article 300 of the Constitution in relation to its affairs and under Section 79 read with Order 27, Rule 1 CPC, in a suit, by or against Central Government, the authority to be named as plaintiff or defendant, as the case maybe, shall be the Union of India. However, in the said case, as the appeal was filed by the Secretary of the Department transacting its function on behalf of the Government as per the business rules framed under Article 77 of the Constitution, the same was treated to have been filed by the Union of India by holding that the nomenclature given in the cause title is not conclusive.

In a suit, the Central Government may sue or be sued as the Union of India and a State Government as the State. Section 80 provides that where a suit is to be instituted against the Government or any public official for any act purported to be done in his official capacity, the person filing the suit must give a notice of at least 2 months before filing the suit. The difference in case of a public official is that the suit must be instituted only for acts purported to be done by him in his official capacity. There is no stipulation in the section as regards suits instituted against the government. Any act purporting to be done in his official capacity includes illegal omissions as well. It covers future as well as past acts of such official. It means a series of acts and is applicable even in cases of misfeasance or non-feasance. The act must be such as is done or would have been done in the normal course of his official duties.

The notice must either be served on the person concerned or left at their office. The person entitled to receive the notice in such cases is-

a) Where a suit is instituted against the Central Government but not the Railway department, a Secretary to the Government.

b) Where a suit is instituted against the Central Government and it relates to the Railway, the General Manager of Railways.

c) Where a suit is instituted against the Government of Jammu and Kashmir, the Chief Secretary to the Government.

d) Where a suit is instituted against any other State Government, a Secretary to such Government or the Collector

e) Where a suit is instituted against any public official, such public official

The content of such notices has been specifically stated in the Code. The notice must state the cause of action, the name, description and place of residence of the plaintiff and the relief sought by him. It must be stated in the plaint that such a notice has been sent. The notice is not a mere formality. It is sent so that the government is given ample opportunity to decide on the legality of the issue with the help of its advisors and public money is not wasted.

A Constitution Bench of this Court in The State of Punjab Vs. The Okara Grain Buyers Syndicate Ltd., AIR 1964 SC 669, held that if relief is sought against the State, suit lies only against the State, but, it may be filed against the Government if the Government acts under colour of the legal title and not as a Sovereign Authority e.g. in a case where the property comes to it under a decree of the Court.

In Ranjeet Mal Vs. General Manager, Northern Railway, New Delhi, AIR 1977 SC 1701, this Court considered a case where the writ petition had been filed challenging the order of termination from service against the General Manager of the Northern Railways without impleading the Union of India. The Court held as under :-

“The Union of India represents the Railway Administration. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal. It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court.” The same was reiterated in The State of Kerala v. The General Manager, Southern Railway, Madras, AIR 1976 SC 2538

In Kali Prasad Agarwala v. M/s. Bharat Coking Coal Limited, AIR 1989 SC 1530, while considering an issue whether the suit lands had vested, free from encumbrance in the State consequent upon the issuance of Notification under Section 3 of the Bihar Land Reforms Act, this Court did not entertain the case observing as under :-

“In our opinion, it is unnecessary to consider the first question and indeed it is not proper also to consider the question in the absence of the State which is a necessary party for adjudication of that dispute. The State of Bihar is not impleaded as a party to the suit and we, therefore, refrain from expressing any opinion on the first question.”

The provision of Section 80 as regards notice is mandatory and no exception must be made. Where however immediate relief is sought, the suit may be instituted without giving such notice and with the leave of the court. But, no relief shall be granted without giving the government or public official an opportunity to be heard. The Government or public official concerned may even waive the requirement of notice. However, where the court feels that no immediate relief is sought after hearing both parties, it may return the plaint to be presented after complying with the necessary requirements of notice. No suit instituted under this provision shall be dismissed on the ground that there is any error or defect in the notice where the notice mentions the name, description and place of residence of the plaintiff and substantially indicates the cause of action and the relief sought. For calculating the period of limitation as regards suits instituted against the government, the period of notice must be excluded.

In State Of Rajasthan vs Rikhabchand Dhariwal, AIR 1961 Raj 64 it was stated that whenever it is deemed necessary to implead the State or any one of its Departments as a defendant in a civil suit, it shall be mandatory to comply with the provision of Section 80 of the Civil Procedure Code. Yet again in Chief Conservator of Forests, Government of A.P. Vs. Collector, AIR 2003 SC 1805, the Court had drawn the analogy from Section 79 CPC, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order XXVII lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the constitution nor under the CPC, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person.

Section 81 provides that where a suit is instituted against a public official for act(s) purported to be done in his official capacity, he shall not be arrested and his property shall not be attached, unless the same is for execution of a decree. Further, he cannot be called upon to attend the proceedings of the court where the court is of the opinion that such attendance would be a detriment to public service.

In Sangamesh Printing Press v. Chief Executive Officer, Taluk Development Board, (1999) 6 SCC 44, the State was not impleaded as a party before the Trial Court in a money recovery suit. The same was dismissed on the ground of non-impleadment of necessary party. During appeal, an application was made under O. 1 R. 10 praying for impleadment of the State, however the High Court decided the matter on merits without considering the same. This Court observed as under :

“Keeping in view the facts and circumstances of the case, we are of the opinion that the High Court should have decided the appellant’s application under Order 1 Rule 10 C.P.C. and, thereafter, proceeded to hear the appeal in question. Not having disposed of the application under Order 1 Rule 10 has caused serious prejudice to the appellant. We, therefore, set aside the judgment of the High Court and restore Regular First Appeal No 29 of 1987 to its file. The High Court should first deal with the application under Order 1 Rule 10 C.P.C. which is pending before it and then proceed to dispose of the appeal in accordance with law.”

While considering the similar case in Chief Conservator of Forests, this Court accepted the submission that writ cannot be entertained without impleading the State if relief is sought against the State. This Court had drawn the analogy from Section 79 CPC, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order XXVII lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the constitution nor under the CPC, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person.

In Bal Niketan Nursery School v. Kesari Prasad, AIR 1987 SC 1970, this Court held that application for impleadment of a necessary party can be filed at any stage of proceeding provided the Court is satisfied that exceptional circumstances prevailing in the case, warrant the impleadment.

Further, Section 82 provides that where a decree is passed against the Government or a public official, the same shall not be executed except where it remains unsatisfied for a period of 3 months from the date of passing of the decree. Such a decree shall be executed where it is passed by a court or any other authority and where the decree is capable of being executed as a decree under the CPC or any other law in force.

PROVISIONS UNDER ORDER XXVII–

Rule 1 provides that in case of a suit by or against the government, the plaint or written statement shall be signed by any person appointed by the government in this regard by way of a general or special order. The plaint or written statement shall be verified by a person appointed by the government and who is aware of the facts of the case.

In State Of Punjab vs Amar Chand, AIR 1980 P H 318 In a suit against the Punjab Government by one of its employees, the Inspector-General of Police, Punjab, had signed the written statement filed on behalf of the Government as a person authorised by notification for the purpose of O. 27, R. 1, Civil P. C. as the case related to the Police Department. An application was then moved on behalf of the Inspector-General of Police, Punjab that a Superintendent of his office who was a gazetted officer and was well conversant with the facts of the case, would appear in Court to assist the Court. This application was treated by the trial Court as an application for review of its order. The trial Court rejected this application and additionally observed that since the Inspector-General of Police, Punjab had signed the written statement and he was one of the persons who bad been notified for the purpose of R. 1 of O. 27, C.P.C., it shows that he was the only person who could appear for effecting a settlement in the case on behalf of the Government.

Rule 2 provides that any person who is ex officio entitled to represent the government in judicial proceedings or is authorized by the government in this regard shall be the recognised agent who shall makes appearances, applications and do acts on behalf of the government. The court pointed out in Firm Mohanlal Ramchandra vs The Union Of India, AIR 1972 Raj 152. There are two distinct rules under Order 27 namely Rules 1 and 2. Under Rule 1 only a limited authority to sign and verify pleadings is given. It is only a person authorised to act without any such limitation who can present a memorandum of appeal.

As per the Hon’ble scupreme court in State Of Uttar Pradesh v. Janki Saran Kailash Chandra, 1973 AIR 2071 it is hardly open to the State Government to plead that the District Government Counsel was not authorised to seek adjournment on its behalf for this purpose. It will be somewhat irrational and perhaps incongruous to permit the State, after having taken the benefit of this adjournment, to plead that the application for adjournment was not made on instructions and was unauthorised. To accede to the State Government the right to do so would clearly be unjust to the opposite party which could have rightfully objected to the adjournment, had there been any indication that the prayer was not being made on instructions from the State Government.

Also, a recognized agent like the District Government Counsel can scarcely be considered to appear voluntarily in a case on behalf of the Government in the sense of being unauthorised by his client for the simple reason that he is authorised by virtue of statute to appear, act and make applications on behalf of the Government.

Also in Rohtas Singh vs Commissioner, Agra, AIR 1997 All 278 under Order XXVII, Rule 2, CPC persons, being ex officio or otherwise authorized to act for the Government in respect of any judicial proceeding shall be deemed to be the recognised agents by whom appearances, acts and applications under CPC maybe made or done on behalf of the Government, under Rule 4 of Order XXVII CPC the Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court. Under Rule 4 of Order III, CPC – No, pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person and every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader as the case may be and filed in Court, or until the client or the pleader dies, or until all proceedings in me suit are ended so-far” as regards the client.

Thus, as per the above referred provisions of Civil Procedure Code once a counsel is engaged for the State he shall continue to remain authorised agent for the State until his engagement is determined by the client or pleader in writing with me leave of the Court, therefore, State Law Officers

As per Rule 4, the government pleader shall be the agent of the government for receiving all court processes. In Mundrika Prasad Sinha v. State Of Bihar, 1979 AIR 1871 the Hon’ble Supreme Court stated that as per section 2(7) of the CPC, ‘Government Pleader’ includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader.”

Manifestly, this is an inclusive definition and, read along with Order 27 Rule (4) and (8) B(c), clearly yields the inference that Government may have as many Government Pleaders as it likes to conduct its cases even as any client, who has a crowd of cases to be conducted, my engage a battery of lawyers. Government is in no worse position that an ordinary litigant and is not bound to encourage monopoly within the profession. Indeed, the root cause of the petitioner’s desire to corner all the litigation of the Government is that its policy of legal remuneration has no distributive bias nor socially sober ceiling. Some States have already adopted such a policy. Indeed, the State must evolve a policy in regard to its Law Officers which concedes to counsel freedom to recommend settlement of cases if they feel it just to do so and further practises distributive justice which preempts the need for adjournment because of absence of counsel and, lastly, sets a limit on the total fee payable for government work executed.

Section 2(7) of the Code of Civil Procedure being an inclusive definition allows any number of Government pleaders. It vests no sole control on one Government pleader over others and Government is perfectly free to put a particular Government pleader in charge of particular cases. Each one of them is a Government Pleader and may depute other lawyers and exercise control over such surrogates. In this view, there is no error in the summary despatch deservedly given by the High Court to the writ petition whose main merit was daring novelty.

It was further opined by the Madras High Court in V.K. Elayalwar vs The Registrar, (1970) 2 MLJ 343, that under Order 27, Rule 4, Civil Procedure Code, the Government Pleader is the agent of the Government for the purpose of receiving the process against the Government ” issued by such Court “. Obviously, the service of a copy by the petitioner upon the Government Pleader even before his writ petition is admitted and entertained by the Court cannot be effective service within the meaning of Order 27, Rule 4, Civil Procedure Code, for it cannot be regarded as a process issued by the Court.

According to Rule 5, for the purpose of fixing the date for the hearing, the court must have due regard to the communications made to the government, issue of instructions to the government pleader to appear, etc. Such time limit may be extended by the court but not beyond 2 months in aggregate. In pursuant with Rule 7, an extension may also be granted where a public official is the defendant and he takes leave from the court to make a reference to the government before he answers the allegations in the plaint. This is also because as per Rule 5A, in every suit against a public officer, the government is deemed to have been joined as a party.

It was also observed by the Supreme Court in Mundrika Prasad Sinha vs State Of Bihar:

“I am clearly of opinion that having regard to the fact that the Government Pleader of this court is employed by the State on remuneration paid from the public exchequer and having regard to the various functions and duties to be performed by him in the due exercise of that office, most of which are of an independent and responsible character, the office must be held to be a public office within the scope of a quo warranto proceeding.

I consider that the most useful test to be applied to determine the question is that laid down by Erle, J. in (1851) 17 QB 149. The three criteria are, source of the office, the tenure and the duties. I have applied that test and I am of opinion that the conclusion that the office is a public office is irresistible”.

In this view, ordering about a Government Pleader is obnoxious but nothing savouring of such conduct is made out although we must enter a caveat that Governments under our Constitution shall not play with Law Offices on political or other impertinent considerations as it may affect the legality of the action and subvert the rule of law itself. After all, a Government Pleader and, in a sense, every member of the legal profession, has a higher dedication to the people.

Recommendation for amendment:

In the same case The Central Law Commission went to the extent of recommending a new provision to be read as Order 27 Rule 5B. The Commission observed:

“we recommend the insertion of the following rule:-

5-B(1) In every suit or proceeding to which the Government is a party or a public officer acting in his official capacity is a party, it shall be the duty of the Court in the first instance, in every case where it is possible to do so consistently with the nature of the circumstances of the case, to make every endeavour to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

2) If in any such suit or proceeding, at any stage it appears to the court that there is a reasonable possibility of a settlement between the parties, the court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement.

3) The power conferred by sub-rule (2) is in addition to any other power of the court to adjourn the proceedings.”

The relevance of these wider observations is that avoidable litigation holds out money by way of fees and more fees if they are contested cases and this lures a lawyer, like any other homo economics, to calculate income on a speculative basis, as this Government Pleader has done in hoping for a lakh of rupees.

The Court may also, in any case in which the Government Pleader is not accompanied by any person on the party of the Government; who may be able to answer any material questions relating to the suit, direct the attendance of such a person.” In State Of Punjab vs Amar Chand Walia, AIR 1980 PH 318 it was held that a perusal of this rule would show that what it requires is a person who may be able to answer any material question relating to the suit that may be posed by the Court. These words do not warrant insisting of the Court on the presence of a particular person. The Court can require the presence of a person who is well conversant with the pacts of the case and would be able to assist the Court in effecting a settlement.

Rule 8 states that where the government decides to take defence for acts done by a public official, the government pleader after having been authorized in this regard shall make an application to the court and the court shall cause his name to be entered into the register of civil suits. Where no such application is made by the government pleader on or before the date of hearing as fixed by the notice, the proceedings shall be deemed to be as between private parties. However, the public official in such case cannot be arrested or his property cannot be attached, except where it is for execution of a decree.

In the matter of State of Rajasthan v. Chiranji Lal Agrawal,(1970 Raj LW 111) with reference to competency of the Government Advocate to present the appeal, it was Held by this Court that the provisions of Order 27, Rule 8, C.P.C. being in derogation of the ordinary law should be limited to the purposes expressly for implidly indicated and cannot be extended beyond those purposes. This provision only enables the Govt. pleader to appear and defend public officers but this provision cannot enable the State to file an appeal on bahalf of the public officer. It was further held by this Court that the State is not entitled to contend that the decree having been varied, it is entitled to obtain certificate as a matter of right having regard to the valuation of the dispute for showing that the appeal involves some substantial question of law and the second appeal was consequently dismissed.

Later in Firm Mohanlal Ramchandra v. The Union Of India, AIR 1972 Raj 152, all that Rule 8-B lays down is that wherever the expressions “Government” and “Government pleader” occur in any rule of Order 27 they shall be read as “Central Government” and such pleader as the Central Government may appoint whether generally or specially for the purposes of this order. In Rules 1 and 2 of Order 27 only the expression “Government” occurs and in relation to the present proceedings this will be read as “Central Government”. The expression “Government pleader” does not occur in Rule 2. Therefore, it cannot be argued that every Government pleader who is authorised to appear on behalf of the Central Government is also authorised to act for the Central Government without any express authority in that behalf.

The question which had arisen for consideration of learned Division Bench of this Court was regarding authority of the Asstt. Government Advocate to present the memorandum of appeal when he was not duly authorised by the department to do so with reference to interpretation of the provisions of Order 3, Rule 4(1) and (6) read with Order 27, Rule 8, C. P.C. in relation to any suit by or against the Central Government. A special appeal was preferred by the appellant against the judgment of learned single Judge of this Court in second appeal dismissing its suit for recovery of compensation which was decreed by the trial Court and the first appellate Court. The first contention on behalf of the appellant before this Court was that the preliminary objection was erroneously rejected by the learned single Judge. Reliance was placed on the provisions of Order 27, Rules 1, 2 and 8, C.P.C.

It was consequently held by this Court that since a Government Advocate cannot act without a general or special authority in writing empowering him to do so and since he is not exempted from the requirements of Sub-rule (1) of Order 3, C.P.C. the then Addl. Advocate General of Rajasthan High Court had no authority to present the memorandum of second appeal in this Court, the second appeal was therefore, incompetent and was consequently dismissed.

Pursuant to Rule 6, the court may even direct the attendance of any person who may be able to answer material questions as regards the matter on behalf of the government where such person doesn’t appear in court without the government pleader. No security is required to be furnished by the government or the public official. In Rohtas Singh vs Commissioner, Agra Division, AIR 1997 All 278, it was opined that the government officials against whom Contempt notices are issued should personally incur the expenses of contempt proceedings and only thereafter if they are honorably exonerated the amount spent may be reimbursed to them. It will naturally discover the tendency of flouting the Court orders by the Government officials.

As far as extending legal aid to such government officials to concerned the State Government may prepare a panel of lawyers to defend the government officials in contempt matters but it cannot include in that panel the Government Advocates, Additional Government Advocates, Deputy Government Advocates, Assistant Government Advocates public Prosecutors, Additional/Assistant Public Prosecutors Chief Standing Counsel, Additional Chief Standing Counsel, Standing Counsel or any other counsel who is continuing under engagement for the State. In case, such Stale Law Officers will be allowed to be included in that panel, the Government employees who are facing prosecution for corrupt practices may also demand similar protection from, the State.